Zenobia K.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor (Bureau of Labor Statistics), Agency.

Equal Employment Opportunity Commission

Mar 8, 2019

2019000915 (E.E.O.C. Mar. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenobia K.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor (Bureau of Labor Statistics), Agency. Appeal No. 2019000915 Agency No. DOL-18-04-002 DECISION On November 1, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 9, 2018 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of the events at issue, Complainant was an applicant for an Economist/Statistician position at the Agency’s Washington D.C. facility. On October 16, 2017, Complainant filed a formal EEO complaint claiming the Agency discriminated against her on the bases of race (African-American), religion (Christian), color, and age (over 40) when, in or around November 2016, she was not referred to the selection official for the Economist/Statistician position at the Bureau of Labor Statistics advertised under Vacancy Announcement No. MS-16-BLS-EU-173. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000915 2 Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On October 9, 2018, the Agency issued its final decision based on the evidence developed during the investigation, finding no discrimination. The instant appeal followed. ANAYLSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts which, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted based on a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Complainant asserted that she submitted an application through USAJobs for the Economist/Statistician position at the Bureau of Labor Statistics advertised as Vacancy Announcement No. MS-16-BLS-EU-173. She maintained she met the qualifications for position based on her education and prior work experience. She alleges, however, that her application was not considered and her references not contacted because she was told she was outside of the “area of consideration.” The Human Resources (HR) Project Coordinator (white Caucasian, Episcopalian, year of birth 1986) reviewed the candidates’ qualifications, issued the Certificate of Eligible Candidates to the selecting official, and processed the selection decision. 2019000915 3 He stated that he was not aware of Complainant’s race, color, age or religion as he only saw her application materials. The HR Project Coordinator stated that the vacancy announcement stated that to be eligible for the position (“area of consideration”) an applicant had to be a current or former Federal employee with competitive or reinstatement eligibility, Interagency Career Transition Assistance Plan (ICTAP) and Career Transition Assistance Plan (CTAP) eligibles in the local commuting area, or Veterans’ Employment Opportunity Act (VEOA) eligibles. The HR Project Coordinator explained that, after a review of Complainant’s application package, he determined that she was disqualified from the subject position because she did not meet these basic eligibility requirements. Specifically, the HR Project Coordinator stated that he determined Complainant was never a federal employee, a displaced federal employee, or a veteran, based on her application. The HR Project Coordinator explained that because Complainant was not in the area of consideration, her qualifications were not accessed further. The selecting official confirmed the HR Project Coordinator’s definition of the area of consideration for this vacancy. The record also contains a copy of the vacancy announcement which explicitly states the job was opened to current or former competitive service employees, displaced federal employees under the CTAP, ICTAP or RPL programs, or veterans. Complainant’s application materials did not indicate she fell into any of these categories. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2019000915 4 A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2019000915 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 8, 2019 Date